Hodge v. Drake

The action is upon contract for work, labor, materials and money had and received to the use of the plaintiffs. The first cause of demurrer assigned is that, “ there is a defect of parties plaintiff.” In what the defect consists has not been stated, as that has been required to be done, by § 490 of the Code of Civil Procedure, to render the demurrer for that cause sufficient. And it was properly overruled by the special term. Anderton v. N. Y. Concert Co., 41 Hun, 571; 4 N. Y. State Rep., 101; Dodge v. Colby, 108 N. Y., 445; 13 N. Y. State Rep., 848.

The second cause of demurrer is, “ that twó causes of action have been improperly united in said complaint.” To make this objection available the section of the Code already mentioned has directed that it must point out specifically the particular defect relied upon. That was not done, and this branch of the demurrer must fail because of that defect.

Beyond that the plaintiffs are stated to have one of them acquired the interest of their co-partner, Frank S. Ketchum, in the several causes of action, which accrued in favor of their firm, by an assignment from him, which added to their own interests vested them with all the interest and right intended to be enforced by the action, and avoided the ground of the first objection, even if it had been specifically enlarged. And there is certainly no better foundation for the second objection, for the causes of action as they have been severally set forth are all upon contract, and equally affect the parties to the action.

The third and last objection is that the complaint fails to state facts sufficient to constitute a cause of action. This is fully answered by the facts alleged, that the plaintiffs together with Frank S. Ketchum performed work and labor at the request of the defendants, and supplied materials for the work and sold and delivered certain materials to the defendants, and that Ketchum had assigned his interest in these causes of action to one of the plainiffs, which vested them completely with the title. Also that the defendants had received money belonging to these two plaintiffs, which they had failed to pay over.

In all these allegations there certainly was one, or more, causes of action stated, and this third ground of demurrer was unfounded. The judgment should be affirmed, with costs.

Yan Brunt, P. J., concurs.